Jarden and Eastwood (No 2)

[2020] FamCA 381

FAMILY COURT OF AUSTRALIA

JARDEN & EASTWOOD (NO. 2) [2020] FamCA 381

FAMILY LAW – PARENTING – Variation of interim orders – Where no time has taken place pursuant to orders made – Where variation of interim orders is necessary due to current health restrictions.

APPLICANT: Ms Jarden

RESPONDENT: Ms Eastwood

FILE NUMBER: NCC 3339 of 2019

DATE DELIVERED: 20 May 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13 May 2020

REPRESENTATION

SOLICITOR ADVOCATE FOR THE

APPLICANT:

Ms Callander

SOLICITOR FOR THE APPLICANT: Legal Aid

COUNSEL FOR THE RESPONDENT: Mr Bithrey

SOLICITOR FOR THE RESPONDENT: Cooney Harvey Doney

Orders

1. Orders of 1 April 2020 are varied as follows:

   Orders 3 and 4 are discharged.

   [3]Ms Jarden shall spend time with the child at a contact centre and failing agreement otherwise at B Contact Centre C Town, or for as long as time at a contact centre is unavailable, through private supervision arrangements as determined by the Court as follows:

   a)For one hour on each of two consecutive weeks commencing in the week starting Sunday 24 May 2020, and failing agreement otherwise from 11.00 am to 12.00 pm on Monday 25 May 2020 and Monday 1 June 2020, and on each of these occasions:

   i.Ms Jarden shall spend time with the child in the home of the maternal grandmother if the maternal grandmother is willing for that to occur, supervised by Ms K with the maternal grandmother to withdraw from the room or space where time is taking place for the whole of the period; OR

   ii.In the event that the maternal grandmother is not willing for time to occur in her home in the manner described in Order 3(a)(i), then supervised by Ms K (or another nominated supervisor as agreed) in a park or playground in the Q Town area nominated by Ms K in consultation with Ms Jarden; and

   iii.Changeovers shall take place by Ms Eastwood providing the child to the supervisor and departing the home/place prior to the arrival of Ms Jarden at the commencement of a period of time and waiting until 15 minutes after the period of time has finished before collecting the child from the supervisor at the home/place.

   b)Thereafter, for two hours on one day each week commencing in the week starting Sunday 7 June 2020 (and failing agreement otherwise on Mondays from 11.00 am to 1.00 pm) supervised by one of the  supervisors referred to in Order 2 herein (as nominated by Ms Jarden):

   i.Changeovers shall take place by Ms Eastwood or her nominee delivering the child to and collecting the child from the supervisor at the home of Ms Jarden on each occasion.

2. Time between Ms Jarden and the subject child may be supervised by any of the following nominated supervisors:

   (a)Ms K;

   (b)Ms L;

   (c)Ms M;

   (d)Mr N;

   (e)Ms P;

   SUBJECT to each person filing with the Court, prior to a first supervision event, an Undertaking to this effect:

   “In the event that the child is at risk of harm from the conduct of Ms Jarden during a period of supervision, the supervisor will remove the child from harm, contact Ms Eastwood, identify the harm and arrange for Ms Eastwood to collect the child.”

3. That the Application in a Case (Parenting) filed 21 April 2020 is otherwise dismissed.

4. That the Response to the Application in a Case filed 6 May 2020 is otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarden & Eastwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3339 of 2019

Ms Jarden

Applicant

And

Ms Eastwood

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Jarden to vary the orders made on 1 April 2020.

2. The application to stay those orders has been dismissed.  Variation of the orders is necessary. COVID-19 restrictions developed quickly from the time of the orders being made and have been the main contributor to the orders becoming unworkable.

3. No time has taken place.

4. There was provision in the orders for private supervision arrangements as an alternative to the nominated B Contact Centre.

5. However Ms Eastwood has been focused on an appeal and the applications for expedition and stay.

6. She has complied with the order to undertake the intake process at B Contact Centre.  Her preference is to wait until the centre has re-opened and becomes available for this matter.

7. Ms Jarden too would prefer for her periods of time with the subject child to take place at B Contact Centre. She too has completed the intake process. However her priority is seeing the child.

8. The application has been made for time to commence using identified supervisors.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant

   (a)Application in a Case filed 21/04/2020;

   (b)Affidavit of Ms Jarden filed 5/05/2020;

   (c)Affidavit of Ms M filed 6/5/2020;

   (d)Affidavit of Ms P filed 6/05/2020;

   (e)Affidavit of Mr N filed 6/05/2020;

   The Respondent

   (f)Response to an Application in a Case filed 6/05/2020;

   (g)Affidavit of Ms Eastwood filed 6/05/2020;

   (h)Affidavit of the maternal grandmother Ms E Eastwood filed 6/05/2020.

2. Ms Eastwood objected to all three supervisors put forward by Ms Jarden.  The basis was a concern by Ms Eastwood that the supervisors would give priority to friendship and support of Ms Jarden over adequacy of supervision.

3. All three supervisors are known to Ms Eastwood. She is critical of them for a number of reasons such as drinking alcohol and with reference to one party, cannabis use. There is no evidence before me that would disqualify the nominated parties as supervisors. The affidavits reveal that the three proposed supervisors are all aware of the role of the supervisor and would act protectively of the child, terminating the visit if necessary.

4. Ms Jarden did not object to two of the supervisors nominated by Ms Eastwood and on that basis they will be nominated supervisors.

5. As a precautionary measure an order will be made for each proposed supervisor to file an undertaking in the manner defined.

6. Ms Jarden did object to the maternal grandmother being a supervisor.

7. I consider that the maternal grandmother would struggle with supervision where she disapproves of the ongoing involvement of Ms Jarden in the life of the child.

8. However, I believe she would undertake the role and be able to maintain respect and restraint for the sake of her grandson.

9. The disqualifying factor is that the child, who most likely has a close loving bond with the maternal grandmother, would choose to engage with her rather than Ms Jarden during short visits.  The child would probably resist being separated from or being too far away from his grandmother.

10. If the maternal grandmother is willing, her home would be a reassuring place for the two introductory visits to take place but it would need to be in her absence. She would at least have to be in another part of her own home.

11. It would be understandable if the maternal grandmother does not wish to facilitate such an arrangement. If so, the visit could take place in a local place; a park or playground or even the home of the supervisor if she chose.

12. The orders provide for one particular supervisor put forward by Ms Eastwood to be present for the first two visits. She is known to the child and both parties and lives locally to the child’s home.

13. Otherwise it will be a matter for Ms Jarden as to which supervisor is present once the two hour weekly visits begin.

14. Ms Eastwood will have the opportunity to see and speak briefly to the supervisor at the beginning and end of each of those visits at changeovers.

15. Orders are made accordingly.

16. The Court event on 28 May 2020 has been left in place for directions only at 10.00 am.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 May 2020.

Associate: 

Date:  20 May 2020